Do The New George Floyd Documents Constitute A Defense For The Accused Former Officers?

downloadNew documents in the George Floyd investigation have been released and it is likely that they will be key to the criminal defense of the accused officers in that case. The documents contain accounts of extremely high levels of fentanyl in Floyd’s blood that could have contributed to his death. The documents are likely to feature significantly in the criminal defense of former officers Tou Thao, Derek Chauvin, J Alexander Kueng and Thomas Lane.  While admissibility can be challenged, they reflect findings that will be raised at trial on the impact of these drugs in Floyd’s system. However, the documents in my view do not conclusively establish that the drug use was the cause of the death. Indeed, some reaffirm the view of prosecutors.  I do not believe that these documents should not be treated as determinative evidence by the court in pre-trial motions. In other words, this should go to a jury.

The newly released documents include three documents that address the fentanyl issue but there is a critical point of conflict in the accounts.  One document is a memo from county attorney Amy Sweasy where she offers a summary of a conversation with Andrew Baker, the Hennepin County chief medical examiner. It includes the following account:

Fentanyl 11. He said, “that’s pretty high.” This level of fentanyl can cause pulmonary edema. Mr. Floyd’s lungs were 2-3x their normal weight at autopsy. That is a fatal level of fentanyl under normal circumstances. . . . AB said that if Mr. Floyd had been found dead in his home (or anywhere else) and there were no other contributing factors he would conclude that it was an overdose death.

That is clearly something the defense could highlight to the jury.  Floyd is shown in videotapes complaining that he could not breathe when he was not under restraint. However, the handwritten notes from a meeting contains a notable countervailing statement:

Fentanyl at 11 ng/ml — this is higher than chronic pain patient. If he were found dead at home alone & no other apparent cause, this could be acceptable to call an OD. Deaths have been certified w/ levels of 3.

Baker: I am not saying this killed him.

That is an important distinction since the level of fentanyl could have been a contributor but the legal cause remained the kneeling on the neck of Floyd. Indeed, there is a telling third document from the Armed Forces Medical Examiner System. The federal officials asked for the review and the document states:

The Office of the Armed Forces Medical Examiner agrees with the autopsy findings and the cause of death certification of George Floyd as determined by the Hennepin County Medical Examiner’s Office. His death was caused by the police subdual and restraint in the setting of severe hypertensive atherosclerotic cardiovascular disease, and methamphetamine and fentanyl intoxication. The subdual and restraint had elements of positional and mechanical asphyxiation. The presence of sickle cell trait is a significant finding in this context.

We concur with the reported manner of death of homicide.

The point is that the fentanyl could have made Floyd more vulnerable or susceptible to a fatal medical emergency. However, that would not in my view clearly negate the criminal charge.  There is a torts doctrine that “you take your victims as you find them,” meaning that you are still liable for injuries or deaths even if the outcome was magnified by a pre-condition. So, the fact that someone was more susceptible to greater injury due to age or medical condition does not excuse your liability for the full damages when your intentional or negligent tort was the cause of the injury. Obviously, that is a torts and civil rule rather than a criminal standard.  However, it captures the notion that the first question is whether the conduct was excessive or violative before looking at the harm caused by the violation.

Thus, the recently released material cuts both ways for the defendants. To the extent that the officers heard Floyd complaining that he could not breathe while still in the car only confirms that he had some medical emergency or condition.  That could make the conduct of the officials more sanctionable, not less.  Officers commonly deal with people who have drugs in their system and are legally required to consider any medical threat in how they address such encounters.  They can argue that the drug use was a type of superseding intervening factor. However, these documents still support the prosecutors on the ultimate cause of death in the level of restraint used by the officers.

125 thoughts on “Do The New George Floyd Documents Constitute A Defense For The Accused Former Officers?”

  1. “Jacob Blake Shooting Shines New Light on Death of Michael Bell, Killed by Kenosha Cops in 2004”

  2. Mr. Turley –

    Have you seen George Parry’s analysis of the George Floyd incident? It is in two parts. Links are below:

    Have you reviewed the Minneapolis Police Department’s official training materials on how to safely and properly subdue a suspect suffering from “excited delirium”? Or the image from that publication titled “OK they are in handcuffs now what”?

    I am interested in your take about how the police department’s training documents may affect the case against the officers, and also your take on why national media outlets have not reported on the training documents. National media also appears to have carefully limited reporting on the toxicology report, and on the relatively long delay by the DA’s office in releasing the toxicology report considering the unrest in the local community

    I thank you in advance for any response you may provide (if you don’t respond, I understand).

    I enjoy your articles, commentary, and blog.

    Doug Santo
    Pasadena, CA

    1. Doug, I posted a message earlier with the links to those same two articles, but my message never appeared. I’m sending another message with a video on the George Floyd case that includes an interview with George Parry. It’s not a substitute for those excellent and well researched articles, but it’s a great primer on the actual facts of the case. Unfortunately, there’s a lot of disinformation being circulated about the case because the mainstream media is far more interested in inflaming—than informing—the public..

  3. If there is a reasonable chance that Floyd’s death was caused by a fentanyl overdose, does that not mean that it cannot be certain beyond a reasonable doubt that the police caused his death?

    1. You’re correct: it ABSOLUTELY makes problematic proof beyond a reasonable doubt. Prof. Turley conflates the criminal law standard with that of civil jurisprudence which would most likely hold Officer Chauvin guilty for civil damages. That is because of the long-standing rule that a tortfeasor is responsible for the condition in which he finds his victim.

  4. So where do you get a jury that hasn’t seen the video, isn’t aware of the toxicology report, isn’t afraid to vote not guilty for fear of rioting, looting and arson? Soooo right or wrong can these guys expect a fair trial or are they just food for the mob?

    1. they have a chance vet., they have a chance. that’s all any of us ever have, just keep on fighting and trying to do what’s right

  5. Wouldn’t it be something if all these cops got acquitted after lengthy court proceedings. What happens then.

    1. Easy answer bob. BLM riots. we all know that one.

      to which we have to say, better be ready when they do, cuz there’s a big chance they will beat the raps

    2. It’s obvious: a finding of Not Guilty will produce more rioting — demanding that the authorities turn over defendant Chauvin to the sweet ministrations of the mob. Shades of “Give Us Barabbas.”

  6. “However, the documents in my view do not conclusively establish that the drug use was the cause of the death.”:

    The accused do not have to prove that they are innocent.

  7. Once upon a time a number of us fired bullets and other devices at a number of targets known as NVA. The ultimate ending was death. Some were a bit thin, emaciated because of the interdiction of supplies on the Ho Chi Minh Trail and some of them would have died anyway. Perhaps it was a combination of occurrences that made them run slower and not duck faster.or shoot straight enough.

    Does it really matter? Which of the many involved were too blame. Does it really matter? Only to the Acosta’s and Pelosi’s of the world and then only because it served a non related purpose.

    And then they were forgotten.

    Because they were a non related incident with a non related purpose.

    Just like that fly you swatted last week.

    1. The one true fact is with that condition why was George in that area doing what George was doing?

  8. Black Cop At Floyd’s Death:

    It Was His Third Day As A Full Police Officer

    In December, Mr. Kueng graduated from the police academy. For most of his field training, Derek Chauvin, with 19 years on the job, was his training officer.

    At one point, Mr. Kueng, upset, called his mother. He said he had done something during training that bothered a supervising officer, who reamed him out. Ms. Kueng did not know if that supervisor was Mr. Chauvin.

    Mr. Chauvin also extended Mr. Kueng’s training period. He felt Mr. Kueng was meeting too often with a fellow police trainee, Thomas Lane, when responding to calls, rather than handling the calls on his own, Ms. Kueng said.

    But on May 22, Mr. Kueng officially became one of about 80 black officers on a police force of almost 900. In recent years, the department, not as racially diverse as the city’s population, has tried to increase the number of officers of color, with limited success.

    That evening, other officers held a small party at the Third Precinct station to celebrate Mr. Kueng’s promotion. The next evening, he worked his first full shift as an officer, inside the station. On that Sunday, he worked the 4 p.m. to 2 a.m. patrol shift, his first on the streets.

    On May 25, Mr. Kueng’s third day on the job, Mr. Kueng and Mr. Lane, now partnered up despite both being freshly minted rookies, were the first officers to answer a call of a counterfeit $20 bill being passed at a corner store. They found Mr. Floyd in a car outside.

    After they failed to get Mr. Floyd into the back of a squad car, Mr. Chauvin and Tou Thao, another officer, showed up.

    As Mr. Chauvin jammed his knee into the back of Mr. Floyd’s neck, Mr. Kueng held down Mr. Floyd’s back, according to a probable cause statement filed by prosecutors.

    Mr. Chauvin kept his knee there as Mr. Floyd repeated “I can’t breathe” and “mama” and “please.” Through the passing minutes, Mr. Kueng did nothing to intervene, prosecutors say. After Mr. Floyd stopped moving, Mr. Kueng checked Mr. Floyd’s pulse. “I couldn’t find one,” Mr. Kueng told the other officers.

    Critics of the police said the fact that none of the junior officers stopped Mr. Chauvin showed that the system itself needed to be overhauled.

    Edited from: “The Black Officer Who Detained George Floyd Had Pledged To Fix The Police”

    The New York Times, 6/27/20


      The vast majority of coverage from the Floyd incident centered on Floyd and his killer, Officer Chauvin. Far less reported is the story of Officers Kueng and Lane. Both were fresh rookies on their third day as full cops. The fact that they didn’t challenge Officer Chauvin is really not surprising when one considers how new they were to the force. One questions if they deserve prosecution.



      2. PaintChips, I want to make sure I keep you up to date. Today is the 319th retraction. This time it was Megan Sheets from The Daily Mail. When you lie about Project Veritas you retract the lie or face a suit. Veritas hasn’t lost a libel suit yet because they can prove that what they have shown about your idols is correct. Washington Post has retracted 8 times.

        The following video isn’t necessary to watch as James is only explaining what happened. His other videos are interesting because they expose dastardly deeds of the left, the MSM, the Teachers Union, ACORN, and a whole host of other issues.

      3. Seth– I agree. But they aren’t being prosecuted; they are being sacrificed.

        1. “they are being sacrificed.”

          Based on your statement I have two interesting articles.

          Who Killed George Floyd?

          ….Sorry, Derek. Raisons d’État–reasons of state–dictate that you spend the rest of your life in prison. Civic authorities are too frightened of rioters, or too sympathetic with their cause, for it to be otherwise.


          About That Kenosha Shooter

          …That said, there appears to be a decent case that Rittenhouse acted in self-defense. Who says this? Sit down for the answer: a team of reporters from the New York Times. …

          1. Thanks! Both good articles.

            They will try to sacrifice this kid, too. Sounds like the evidence coming in supports self defense. It also helps that the people shot are white and have significant criminal records. Some on the jury might wish they had been shot sooner.

      4. I agree with Seth, even if there is a viable prosecution of Chauvin, and I accept the jury’s verdict to come either way, it’s questionable to be prosecuting these others.

        they will have even more reasonable doubt on their side.

        but the mob cries out for blood.

        regular people need police to help keep us safe. we will never be able to afford security teams 24/7 like Mikey Bloomberg or Tom Steyer or Soros or the other big money billionaires egging on BLM riot organizers and their followers. If you want a reason Donald is polling well now, that’s all the reason you need right there.

  9. If someone was in the throes of a fatal overdoes, but was shot in the head, the cause of death was gunshot wound, regardless of the fact that the victim would not have survived the overdoes.

    Evidence will be presented at court to determine if kneeling on Floyd’s back hastened his death. The evidence of the state of his lungs, and tox screen, indicates he was experiencing an overdoes that likely would have been fatal. Addicts can have a shockingly high tolerance, but this was affecting his lungs.

    This part is purely suppositional. I believe that George Floyd OD’d, and was experiencing real respiratory distress, a panic attack, and drug induced agitation. All 3 would have been a traumatic feeling to experience all together. He wouldn’t tell the officers what he took, which would have allowed medical personnel to help him. He fought with cops. I think he was panicking. Physical struggle and panic are the worst possible things to do while in respiratory distress. It increases the heart rate, which increases the burden on struggling lungs. All it does is make it feel like you can’t breathe even worse.

    Having asthma, I can tell you that when I imagine having my hands handcuffed behind my back while in an asthma attack, it sounds like it would make it harder to breathe, or at least increase panic. When I’m having trouble, I often place my hands atop my head to lift the diaphragm. Changing position, such as leaning forward 45 degrees, can help. Getting pinioned while gasping for air would be bad.

    The problem, as I see it, is that Floyd kept fighting, wouldn’t say what he’d taken. It doesn’t sound like it was safe to sit him on the curb, put his hands on his head, and sit and talk calmly with him to try to reduce his heart rate. It was a fight in the beginning. Perhaps the drugs made him to agitated to make cooperation possible. Perhaps attempts to cuff him just sent him into a blind panic.

    From the safety of my keyboard, where I do not have to wrestle with violent drug addicts, I would offer police the advice that if possible, if someone is in respiratory distress, try to sit them down, change positions, put their hands on their heads, or try anything that helps loosen the airway. If he was suffering pulmonary edema, he would be drowning. Since he kept saying he couldn’t breathe, and fighting, they might have thought this was a drug induced frenzied panic attack, and were trying to contain him.

    I emphatically, vehemently disagree with Chauvin kneeling on him at the end. Maybe he was fed up fighting. Maybe he thought he would just pin the drug addict down until he could be carted off. Whatever the case, as an asthmatic, seeing someone pinned like that while crying he can’t breathe hits me hard. The guy was on drugs. He couldn’t be rational.

    I want law enforcement, mental health professionals, pulmonary doctors, and drug rehabilitation counselors, to all form a task force and come up with a best practice for this scenario. Pick out the best practices from various police departments across the country, and try to get medical advice on how to safely deal with a violent drug addict suffering respiratory distress and panic.

    Knowing how scary respiratory distress feels like, I would have wanted to sit with him and try to calm his heart beat, and breathing, down until medical help arrived. But since he was panicking and high, I might have just gotten myself hurt.

    Another observation is that, while I think Chauvin was terribly wrong to kneel on him, I have not yet seen evidence that his motivation was racism.

    1. In your example if George had not been there no one would have knelt on him Nor would my example of last week’s fly swatting occurred. Some amount of blame has got to be placed on sheer stupidity. If you go walking through the bad part of town at one or two am with the weeks paycheck hanging out your pocket don’t blame me if I picked up the one un recovered bil the next day. If it wasn’t for the first guy I desciribed… and so on….

    2. Karen– Earlier I posted a link that showed the page in the police manual that described the procedure and included a photo of an officer doing it to a volunteer. It was recommended for controlling agitated people. Appearances aside, Chauvin was using a procedure taught and recommended by his department in writing.

      The autopsy did not indicate any trauma from the kneeling restraint. We can’t fairly convict someone who used an approved technique that caused no visible injury just because it is upsetting to see.

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